[Cite as State v. Jones,
2021-Ohio-3930.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110405
v. :
LEE JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 4, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643006-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellee.
Lee Jones, pro se.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Lee Jones, appeals the trial court’s decision
denying his motion to withdraw his guilty plea and vacate his conviction pursuant
to Crim.R. 32.1. For the reasons that follow, we affirm.
In July 2020, Jones pleaded guilty to three first-degree felonies — two
counts of rape and one count of aggravated robbery. The trial court imposed a total
prison sentence of 30 years ─ 10 years on each count to be served consecutively.
Jones did not appeal his convictions.
On February 23, 2021, Jones filed a motion to withdraw his guilty plea
and vacate his conviction pursuant to Crim.R. 32.1. He contended that his trial
counsel provided him with misinformation prior to entering his plea and thus, he
did not enter a knowing, intelligent, and voluntary plea. The trial court summarily
denied his motion.
Jones now appeals, raising two assignments of error. In both
assignments of error, Jones contends that the trial court abused its discretion when
it denied his Crim.R. 32.1 postsentence motion to withdraw his guilty plea without
conducting a hearing. We disagree.
Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw his or her plea.” A trial court is not required to
hold a hearing on a post-sentence motion to withdraw unless the defendant supports
his motion with sufficient evidence demonstrating that he would be entitled to relief.
See, e.g., State v. Sadowsky, 8th Dist. Cuyahoga Nos. 90696 and 91796, 2009-Ohio-
341, ¶ 30.
The defendant bears the burden of establishing the existence of
“manifest injustice.” State v. Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324 (1977),
paragraph one of the syllabus. Manifest injustice is “a clear or openly unjust act,”
State ex rel. Schneider v. Kreiner,
83 Ohio St.3d 203, 208,
699 N.E.2d 83 (1998),
“that is evidenced by ‘an extraordinary and fundamental flaw in the plea
proceeding.’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and
104641,
2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No.
90141,
2008-Ohio-455, ¶ 8. We review the trial court’s decision denying Jones’s
motion under an abuse-of-discretion standard. State v. D-Bey, 8th Dist. Cuyahoga
No. 109000,
2021-Ohio-60, ¶ 58.
Jones contends that he was deprived of effective assistance of counsel
prior to entering his plea and thus, did not enter a knowing, intelligent, and
voluntary plea. Specifically, he states that counsel advised him that if he accepted
the state’s offer and pleaded guilty, he “would receive no extra sentence from the
time he is presently serving as the trial court would sentence [him] to a concurrent
sentence, [and] therefore [he] would not have to serve … one extra day from the
time in the other cases he [is] presently serving.” When Jones was sentenced, he
was already serving an aggregate prison term of 53 years in connection with 12 prior
felony convictions.
We find no abuse of discretion by the trial court. First, Jones’s
arguments are barred by res judicata. It is well recognized that the doctrine of res
judicata bars claims that were raised or could have been raised on direct appeal.
State v. Davis, 119 Ohio St.3d 422,
2008-Ohio-4608,
894 N.E.2d 1221. Consistent
therewith, this court has recognized that the doctrine of res judicata bars all claims
raised in a Crim.R. 32.1 motion that were raised or could have been raised in a prior
proceeding, including a direct appeal. See, e.g., State v. McGee, 8th Dist. Cuyahoga
No. 91638,
2009-Ohio-3374. Accordingly, because Jones could have raised this
issue in a direct appeal, his claims are now barred.
Additionally, Jones cannot establish that he was prejudiced by trial
counsel’s alleged promises. To establish ineffective assistance of counsel, he must
demonstrate that his counsel’s performance fell below an objective standard of
reasonable representation and that he was prejudiced by that performance. State v.
Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084,
854 N.E.2d 1038, ¶ 205, citing
Strickland v. Washington,
466 U.S. 668,
80 L.Ed.2d 674,
104 S.Ct. 2052 (1984).
Prejudice is established when the defendant demonstrates “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceedings would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland at 694. The failure to prove
either prong of the Strickland two-part test makes it unnecessary for a court to
consider the other prong. State v. Madrigal,
87 Ohio St.3d 378, 388-389,
721
N.E.2d 52 (2000), citing
Strickland at 697.
Assuming for the sake of argument that trial counsel promised Jones
that his sentence would run concurrent to his previous sentences, Jones cannot
establish the prejudice prong of Strickland because his sentences, as a matter of law,
are in fact running concurrently to his previous sentence, just as Jones wanted and
just as his defense counsel allegedly promised. Pursuant to R.C. 2929.41, sentences
run concurrently unless the trial court specifies otherwise or one of the exceptions
listed therein applies. See, e.g., McKinney v. Haviland, 162 Ohio St.3d 150, 2020-
Ohio-4785,
164 N.E.3d 415, ¶ 7 (there is a statutory presumption of concurrent
sentences for most felony offenses).
In this case, none of the exceptions under R.C. 2929.41 apply to Jones’s
sentences. And although the trial court ordered Jones’s individual sentences in this
case to run consecutively, the court did not order Jones’s sentence in this case to run
consecutively to his prior sentences. Accordingly, by operation of law, Jones is
serving this 30-year sentence concurrently with his 53-year sentence from his
previous convictions. Accordingly, Jones has failed to demonstrate that he was
prejudiced by any alleged misinformation, and thus, cannot establish that he was
denied effective assistance of counsel. No manifest injustice has been shown, and
we find no error in the trial court’s decision to deny Jones’s motion to withdraw his
plea without conducting a hearing.
The assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
